State v. Wright

875 P.2d 1174 (1994)

128 Or. App. 88

STATE of Oregon, Respondent, v. Kenneth Allen WRIGHT, Appellant.

93-1028; CA A79579.

Court of Appeals of Oregon.

Argued and Submitted March 31, 1994.

Decided May 25, 1994.

Jesse Wm. Barton, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Kaye E. Sunderland, Asst. Atty. Gen., argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Before WARREN, P.J., and EDMONDS and LANDAU, JJ.

WARREN, Presiding Judge.

Defendant appeals from the sentence imposed after he was convicted of burglary in the first degree and robbery in the first degree. ORS 164.225; ORS 164.415. At sentencing, the trial court imposed a condition of incarceration and stated that it would recommend conditions of post-prison supervision to the Parole Board. The judgment, however, imposes conditions of post-prison supervision and makes no recommendations. Defendant argues that the incarceration and post-prison supervision conditions are error, because they may be imposed only by the Department of Corrections, not by the sentencing court.

Defendant did not object to the conditions. The state agrees that the error is apparent on the face of the record and that defendant is correct that a sentencing court lacks authority to impose conditions of incarceration or post-prison supervision. In State v. Kelsey, 124 Or.App. 446, 863 P.2d 475 (1993), we declined to exercise our discretion to review an unpreserved claim of error as to special conditions of probation. However, we reach the errors here. At the sentencing hearing, the court stated that it would recommend post-prison conditions to the Board of Parole and Post-Prison Supervision. However, the court's written judgment orders actual conditions and defendant had no opportunity to object. Accordingly, we remand for entry of a corrected judgment. State v. Bivens, 127 Or.App. 83, 871 P.2d 486 (1994).

Defendant did not object to the court's imposition of a condition of incarceration at the sentencing hearing. However, the Department of Corrections, not the sentencing court, has the authority to impose conditions of incarceration. Even though the error is not preserved, because we remand for entry of a corrected judgment and the error is apparent on the face of the record, we exercise our discretion to address it. The error should be corrected on remand.

Convictions affirmed; remanded for entry of corrected judgment.